Throughout the Western intellectual tradition, the separation of public and private life has been ubiquitous. Although the line of demarcation changes according to time and circumstance, the conjunction of the public sphere with the masculine and the private sphere with the feminine has remained a constant in political thought. Influenced by Aristotle’s belief that women suffer from an ‘imperfect deliberative faculty’, the public sphere has traditionally been depicted as superior to the private sphere, the former being represented as the locus of rationality, culture and intellectual endeavour, whereas the latter is associated with non-rationality, nature and nurture.
It was only with second wave feminism in the second half of the 20th century that there was a concerted endeavour to unmask the gendered ideological character of the claims about public and private. Despite the compelling nature of these critiques, law has been most resistant to deconstruction. In this article, we will show that substantive changes are occurring to reveal what was formerly invisible under the rubric of ‘private’, but invariably outside of the sovereign body of law – in fiction and swearing-in ceremonies – areas that Peter Goodrich might refer to as ‘minor jurisprudences’. These minor jurisprudences insidiously undermine law from the margins. Goodrich uses the Mediaeval Courts of Love to give women the voices denied them by the sovereign body of law in order to parody or deconstruct the dominant legal order, but there have been numerous other examples over the centuries. We consider the fictional representation of English High Court judge, Fiona Maye, in The Children Act, and the representation of an actual judge, Justice Sharon Johns, at her swearing-in ceremony in the Family Court of Australia. We then take a brief look at Justice Johns’ decisions once she had assumed her role on the Court.